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Section 69 of the I.T. Act
2000 reads a follows :
Directions of
Controller to a subscriber to extend facilities to decrypt information -
1) If the Controller is satisfied that its it necessary or expedient so to do
in the interest of the sovereignty or integrity of India, the security of the
State, friendly relations with foreign states or public order or for
preventing incitement to the commission of any cognizable offence, for reasons
to be recorded in writing, by order, direct any agency of the government to
intercept any information transmitted through any computer resource.
2) The subscriber or any person in charge of the computer resource shall, when
called upon by any agent which has been directed under sub-section (1),
extends all facilities and technical assistance to decrypt the information.
3) The subscriber or any person who fails to assist the agency referred to in
sub-section (2) shall be punished with an imprisonment for a term, which may
extend to seven years.
Similar Provisions:
It is important to note that
similar provisions
are present in I.P.C. & Cr. P.C.
Section 121 of IPC reads as follows -
"whosoever wages war against the Government of India, or attempts
to wage such war, or abets the waging of such war, shall be punished with death,
or imprisonment for life, and also be liable to fine."
Section
37 of the Cr PC reads as follows -
Every person is bound
to reasonably demanding his aid -
a. in the taking or preventing the escape of any other person
whom such magistrate or police officer is authorised to arrest, or
b. in the prevention or suppression of a breach of the
peace; or
c. in prevention of any injury attempted to be committed of
any railway, canal, telegraph or public property.
The section 121 of IPC embraces every description of war, whether by
insurrection or invasion.
It punishes equally the waging of war against the
Government of India, or attempting to wage such war, or abetting the waging of
such war.
The offence of engagement in a conspiracy to wage war, and that of
abetting the waging of war against the Government under this section, are
offence under the Penal Code only, and are not treason or misprision of treason.
Neither the number of person nor the manner in which they are assembled or armed
is material to constitute an offence under this section.
he true criterion is
the purpose or intention with which the gathering assembled. The object of the
gathering must be to attain by force and violence an object of a general public
nature thereby striking directly against the Governments authority.
Thus war may be of any type be it in physical form or in virtual from i.e. in
Cyber space.
The phrase 'Abets the waging of such war' as envisaged in Section
121 carries the similar meaning as engrafted in section 69 (iii) of Cr PC "Fails to
assist the agency."
The basic principle of the phrase is 'Abets the waging of such war
which is made a special offence. It is not essential that as a result of the
abetment, the war should in fact be waged. The main purpose of the instigation
should be 'the waging of war'. It should not be merely a remote and incidental
purpose but the thing principally aimed at by the instigation. There must be
active suggestion or stimulation to the use of violence.
While under the general law as to abetment, a distinction is made for the purpose
of punishment between abetment which has succeeded and abetment which has
failed, this section does away with the distinction and deals equally with an
abettor whose instigation has led to a war and one whose instigation has taken
no effect whatsoever. There is thus no distinction between principal and
accessory, and all who take part in the unlawful act incur the same guilt.
The authors of the Code say:
"We have… made the
abetting of hostilities against the Government, in certain cases, a separate
offence, instead of leaving it to the operation of the general law laid down
in the chapter on abetment.
We have
done so for two reasons;
in the
first place, war may be waged against the Government by persons in whom it is
no offence to wage such war, by foreign princes and their subjects. Our
general rules on the subject of abetment would apply to the case of a person
residing in the Indian territories who would abet a subject of the Indian
Government in waging war against the Government; but they would not reach the
case of a person who, while residing in the Indian territories, should abet
the waging of war by any foreign prince against the Indian Government.
In the
second place, we agree with the great body of legislators in thinking, that
though in general a person who has been a party to a criminal design which has
not been carried into effect, ought not to be punished so severely as if that
design had been carried into effect, yet an exception to this rule must be
made with respect to high offences against the State; for state-crimes, and
especially the most heinous and formidable state-crimes, have this
peculiarity, that if they are successfully committed, the criminal is almost
always secure from punishment.
The murderer is in
greater danger after his victim is despatched than before. The thief is in
greater danger after the purse is taken than before. But the rebel is out of
danger as soon as he has subverted the Government, As the penal law is
impotent against a successful rebel, it is consequently necessary that it
should be made strong and sharp against the first beginnings of rebellion,
against treasonable designs which have been carried no further than plots and
preparations. We have therefore not thought it expedient to leave such plots
and preparations to the ordinary law of abetment ...Under that general law, a
conspiracy' for the subversion of the Government would not be punished at all
if the conspirators were detected before they had done more than discuss
plans, adopt resolutions and inter-change promises of fidelity. A conspiracy
for the subversion of the Government, which should be carried as far as the
gunpowder treason or the assassination plot against William the Third, would
be punished very much less severely than the counterfeiting of a rupee, or the
presenting of a forged cheque. We have, therefore, thought it absolutely
necessary to make separate provision for the previous abetting of great
state/offences. The subsequent abetting of such offences may, we think,
without inconvenience, be left to be dealt with according to the general
law."'
According to section 37 of
the Criminal Procedure Code,
it is required that, in the
cases specified,
every person shall assist a magistrate or a police officer
reasonably demanding or a police officer reasonably demanding his aid.
This section does not intend that police officers and magistrates
should have a general power of calling upon members of public to join them in
doing the work for which they are paid, such as tracing out the whereabouts of
an absconding criminal or collecting evidence to warrant his conviction.
When a magistrate in case of theft ordered a person to find a
clue within 15 days it was held that the order was illegal.
Where a sub-inspector of police demanded the accused to give
assistance in finding and arresting a number of unknown persons who precise
where about were unknown and the accused refused to give such assistance, it was
held that they incurred no criminal liability by reason of such refusal.
The assistance that can be
demanded under Section 37 of Cr PC is personal- assistance of the
individual of whom it is demanded. Personal assistance will include also such
assistance in materials as the placing at the disposal of the police-officer,
the use of a firearm or of a bicycle or other means of locomotion urgently
required by the circumstances of the case. Personal assistance of the case.
Personal assistance will not include, however, the supply of contingent of men
to assist.
The basic points of
similarity between Section 121 of IPC, Section 37 of Cr PC and Section 69
of ITA-2000 are as follows -
1. Abetment in section 121 is a special offence.
2. Section 121 does away with the distinction and equally with an
abettor whose instigation has take no effect whatsoever. Section 69 in silent
about failure whether be it intentional or unintentional. 3. Both aim at the
prevention and prosecution of offences against the state.
The phrase "extends all
facilities and technical assistance to decrypt the information" in sub-section
(2) of Section 69, has similarity with the phrase "is bound to assist' as
engrafted in section 37 of the code of 1973.
The points of similarity between "is bound to assist" and "extent all
facilities and technical assistance to decrypt the information" are as follows
:-
a. Personal Assistance - In both the cases the personal assistance is required
by the investigating authority.
b. Reasonable - The demand of assistance should be reasonable and within the
capacity of the person who is so demand.
c. Disobedience.-In both the cases the disobedience of the order of failure to
comply with it tantamount jeopardy.
Constitutionality
As regards the constitutionality of any law,
Article 13 is intended to achieve paramountcy of Constitution in regard to
fundamental rights. Further Article 13 (2) prohibits the State to make law,
which takes away, or abridges any of the rights conferred by Chapter-III.
Thus, the test of constitutionality of any statute lies in Article 13 (2).
If
the provisions of the statute are Intra-vires and does not contravene any of the rights
conferred under Chapter-III it shall be constitutional. If the provisions are
Ultra-vires and contravene the rights conferred under Chapter III of the
constitution, the statute would be un constitutional.
A
statute would be considered intra-vires if it imposes only restrictions which
may be considered "Reasonable" and encompasses fair trial. It should also
contain well defined powers for the authority and not infringing on the
"Fundamental Rights". If however the restrictions imposed are vague,
arbitrary, against policy of fair trial and provides unlimited or uncontrolled
powers to the authority, or infrnges on the fundamental rights, it would be
considered "Ultra-vires".
Terminology:
Before we proceed further I feel that certain terms as laid down by the
constitution and developed by the constitutional courts need to the discussed
herein. Those terms are as following:
1. Doctrine of real effect: The doctrine of direct and inevitable effect is
also called as the doctrine of intended or real effect. The court must
consider the direct and inevitable consequence of state action.
If the effect of state action on a fundamental right is direct and inevitable,
then a fortiori it must be presumed to have been intended by the authority
taking the action. The Supreme Court in various cases has laid down the tests
to determine whether a state action infringes fundamental rights or not right
from R.C. Cooper to Man Singh Vs. State of Punjab.
2. Doctrine of Severability - The doctrine of severability means just when
some particular provision of a statue violates the constitutional provision,
but that provision is severable from rest of the statute, only that offending
provision will be declared void by the court and not the whole statute. In
other words, an Act may not be void as a whole; only a part of it may be void.
If that part is severable from the rest, then the rest part may continue to
stand. The doctrine of severability has been considered in various cases such
as - A. K. Gopalan's case.
3. Reasonable classification - Classification based on difference in the value
of articles or the economic superiority of the persons of incidence are well recognised. A reasonable classification is one, which includes all who are
similarly situated and none who are not. In order to ascertain whether persons
are similarly placed, one must look beyond the classification and to the
purposes of the law.
The equal protection of the laws guaranteed by Article 14 of the Constitution
does not mean that all the laws must be general in character and universal in
application and that the state is no longer to have the power of
distinguishing and classifying persons or things for the purpose of
legislation.
Test - It is now well settled that Article 14 forbids class legislation, but
does not forbid reasonable classification.
Whether a classification is a
permissible classification under Article 14 or not, the folloing conditions
must be satisfied, namely
(1) that the classification must be founded on a intelligible differential
which distinguishes persons or things that are grouped together from others left
out of the group,
(2) that the differential must have a rational rescues to the object sought to
be achieved by the statute in question, and
(3) that there must be a nexus between the differentiation which is the basis
of the classification and object of the Act.
A constitutional bench of the Supreme Court has held that any act of the
repository of power whether legislature or administrative or quasi-judicial is
open to challenge if it is in conflict with the constitution or the governing
Act or the general principle of the law of the land or it is so arbitrary or
unreasonable that no fair minded authority could ever had made it.
Herein the constitutionality of Sec 69 of the IT Act-2000.
The provision of section 69
of the I.T. Act to be intra-wires constitution should maintain the balance of
conveyance between.
Sovereignty / integrity; Security; Friendly Relations / Harmonious co-existence;
Public order; incitement to the commission of cognizable offence.
AND
Individuality, liberty, dignity i.e. Human Right to Privacy; Freedom of
Expression & speech.
Further, it is also subject to the test of 'Arbitariness V. Reasonableness. The
principles of 'Fair Trial' & 'Due process' of law, should also be encompassed in
the statutory provision. Both point of view regarding the constitutionality of
the Act can be summed up as follows :-
Now at this juncture we have to evaluate that which provision, if any, is
unreasonable; infringes any fundamental rights conferred by Part III of the
Constitution; arbitrary; unfair; against public-policy and welfare;
discriminatory and confers unlimited and unjustified powers.
The Debate: - In my opinion the following provision in section 69 are
debatable -
1. "intercept any information transmitted through any computer resource", in
sub-section (1).
2. "The subscriber or any person who fails to assist the agency referred to in
sub-section (2) shall be punished with an imprisonment for a term which may
extend to seven years, " as envisaged in sub-section 3.
The opinion on the dispute as to "....... intercept any information transmitted through any
computer resource", may be quite dubious as well as diversified.
It may be contended that this provision tries to infringe upon certain areas
or some penumbral zones of privacy.
Though privacy has not been included in
Chapter -III of our constitution it has been recognised to a good extent
as a right engrafted in 'Right to life' as mentioned in Article 21 of our
constitution.
Further the powers conferred by this section to the controller is uncontrolled
and unjustified. The powers vested in the controller to direct the agency of
Government to intercept any information transmitted through any computer
resource for the interest of the sovereignty or integrity of India, the
security of the State, friendly relations with foreign States or public order
or for preventing incitement to the commission of any cognizable offence.
The
criteria rationale to exercise this power is the necessity or expediency of
the situation, which is based on the personal satisfaction of the controllers.
I fear that the error in judging the gravity of the situation might cause
an irreparable damage to the subscriber.
The second point on which this section may be ultra-vires the constitution of
India is the vagueness in using the term "fails". The framers of the Act have
no bearing in mind that if a subscriber does help but he is unable to decrypt
or extend all facilities and technical assistance to decrypt the information, with no
fault of his own, it can be well imagined that what consequences will be have
to bear.
The efficiency as well as the efficacy of the crime prevention and
investigation agency need not be discussed here. The two cases of hacking in
India - in the former one where the police did not know under what provision
the offender who was stealing the internet hours of the subscriber, be booked
under. And in the latter case when hacking has been defined in such clear
fashion in I.T. Act but the Delhi Police gave it a new meaning altogether.
This leaves no doubt as to the apprehension in our mind as to where the
vagueness of this provision might make a netizen's land in any situation.:
The only solution, if any, I feel to this future problem is
to bring about certain changes in the section itself. The framers of the
constitution had it clearly in mind that in India there should be separation of
power. Keeping alive the very same principle, the unfettered and absolute
discretionary power of the controller should be vested in quasi-judicial /
administrative body.
In sub-section (3) the word 'fails' should be deleted and instead
of its the phrase "knowingly and purposefully denies" should be substituted to
make this sub-section read as follows - "The subscriber or any person who
knowingly and purposefully denies to assist (2) shall be punished with an
imprisonment for a term which may extend to seven years."
Parthsarathy.A.S.Pati
e-mail:- paspati@rediffmail.com
Authorities:
1.I.P.C - Ratanlal and Dhirajlal
2.Cr.P.C- Ratanlal and Dhirajlal
3. Constitution of India- Bharat
4. Constitutional Law of India-H.M.Seervai
5. Shorter Constitution of IndiaDr. D.D.Basu
6.I.T.Act 2000
References:
1.www.naavi.com
2.Times of India
Contact Address:
Parthasarathi Pati
7 C, Ashok Nagar, Road No 1, Ranchi,
Jharkhand
885/4/1 Bandarkar Road, Deccan
Gymkhana, Pune 4
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